GENERAL TERMS AND CONDITIONS CUBIC MILL
Last modified: 27 Jun 2022, 16:38.
Article 1 – Definitions
- In these General Terms and Conditions, the following terms are used which have the meanings stated after them.
Contractor: Cubic Mill.
Client: The counterparty of the contractor.
Agreement: The agreement to provide services.
Article 2 – General
- These conditions apply to every offer and agreement between the contractor and a client.
- However, these conditions may be deviated from if the parties have expressly laid this down in writing
- If 1 or more matters in these terms and conditions are null and void or should be annulled, the other matters shall still remain applicable. The parties will then consult on new stipulations that will replace the relevant old stipulations, whereby the purport of the original stipulation must be respected as much as possible.
Article 3 – Execution of the agreement
- The Contractor shall perform the Agreement to the best of its knowledge and ability.
- The Contractor is entitled to have work or services performed by third parties.
- The Principal shall ensure the provision of all information which the Contractor indicates is necessary or which the Principal should reasonably understand is necessary for the performance of the Agreement.
- If the data required for the performance of the agreement are not provided to the Contractor in time, the Contractor will be entitled to suspend the agreement and/or charge the Client for the resulting additional costs in accordance with its usual rates.
- The Contractor will not be liable for damage, of whatever nature, due to the fact that the Contractor has relied on incorrect and/or incomplete data provided by the Principal.
- If it has been agreed that the Agreement will be performed in phases, the Contractor may suspend the performance of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
- The Client indemnifies the Contractor against any claims by third parties who suffer damage in connection with the performance of the Agreement and which is attributable to the Client.
Article 4 – Amendments to the agreement
- If, during the performance of the agreement, it appears that for a proper performance it is necessary to change or supplement the work, the parties shall amend the agreement in good time and in mutual consultation.
- If the amendment will have financial or qualitative consequences, the contractor will inform the client accordingly.
- If a fixed or periodic price has been agreed, the contractor will also indicate to what extent the amendment or supplement to the agreement will result in an overrun of this price, which will be for the account of the client.
- The contractor will not be able to charge additional costs if the amendment or supplement is the result of circumstances attributable to the contractor.
Article 5 – Contract duration
- The agreement between the contractor and a client is entered into for an indefinite period, unless otherwise agreed.
- If a deadline for completion of certain work has been agreed within the term of the agreement, this is not a fatal and firm deadline.
Article 6 – Prices
- All prices communicated by the contractor are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, unless explicitly stated otherwise.
- The parties may agree a fixed or periodic price when the agreement is concluded.
- If no fixed or periodic price is agreed, the price will be determined on the basis of the hours actually spent. This will be done in accordance with the Contractor’s usual hourly rates.
- If the Client agrees a fixed price, periodic price or hourly rate, the Contractor is entitled to increase this price or hourly rate. The Contractor must inform the Client of this in good time.
- The contracted party is entitled to pass on price increases if rates (e.g. purchase or printing rates) have increased between the time of the offer and delivery.
- Moreover, the Contractor may increase the price if it turns out that the amount of work originally agreed or expected was insufficiently estimated when the Agreement was concluded and this is not attributable to the Contractor. In that case, the contractor shall inform the client of the intention to increase the price or rate.
Article 7 – Invoicing and payment
- Payment must be made within 14 days of the invoice date, in a manner to be indicated by the contractor and in the currency in which the invoice was drawn up. Objections to the amount of the invoices do not suspend the payment obligation.
- If the Principal fails to make payment within the 14-day period, the Principal will receive a reminder by e-mail. This reminder must be paid within 14 days.
- If client fails to pay this reminder, client shall be in default by operation of law. A reminder will be sent and must be paid within 14 days. Client shall then owe administration, postage and reminder costs of EUR 22.95 excluding VAT.
- If payment of the reminder has not been received by the client after 14 days, the contractor reserves the right to transfer the claim to a collection agency. Any associated costs will be borne by the customer.
- If the customer is in default or breach of one or more of his obligations, all reasonable costs incurred to obtain satisfaction out of court will be borne by the customer.
- If the contractor has incurred higher costs, which were reasonably necessary, such costs will also qualify for reimbursement.
- Any reasonable judicial and execution costs incurred will also be borne by the Principal.
- The customer will owe interest on the collection costs incurred.
- In certain cases, a price is payable in advance or periodically. Obviously, services will only be provided when this payment is received.
- Provider reserves the right to temporarily or permanently shut down or terminate services and/or products if payment is not made on time.
- Client agrees to invoicing by e-mail. Client understands that communication by this means has the same legal status as letters by post.
- Client is responsible for timely checking incoming e-mail at the e-mail address provided by client, as well as checking the spam folder, should e-mails end up there.
- If his e-mail address changes, the client shall inform the contractor in good time.
Article 8 – Revisions and warranty
- If it is agreed that the Client is entitled to one or more revisions, the Supplier may choose to add additional revisions on a case-by-case basis, provided that the Supplier considers any comments or complaints from the Client to be reasonable and fair.
Article 9 – Cancellation and right of dissolution
- The client waives his right of withdrawal and 14-day cooling-off period in the case of distance selling.
- Once the agreement has been signed or the sale has been entered into on the internet, the order is immediately final.
- Both parties can terminate the agreement in writing or by e-mail at any time.
- If the agreement is terminated prematurely by the client, the client is obliged to pay an amount, which is determined in the additional terms and conditions of the agreement. Provided these additional terms and conditions have not been laid down, the client shall be obliged to pay the invoices for work carried out up to that time.
- If the agreement is terminated prematurely by the contracted party, the contracted party will, in consultation with the client, arrange for the transfer of work still to be performed to third parties, unless facts and circumstances underlying the termination are attributable to the client.
- If the transfer of the work involves additional costs for the contractor, these will be charged to the client.
Article 10 – Suspension and dissolution
- The Contractor shall be entitled to suspend the fulfilment of the obligations or to dissolve the Agreement if:
- Client fails to fulfil or incompletely fulfil the obligations under the agreement.
- After the conclusion of the agreement Contractor learns of circumstances that give good reason to fear that Client will not fulfil the obligations.
- After the conclusion of the agreement the contractor learns of circumstances that give good reason to fear that the customer will misuse the services of the contractor or use them for illegal purposes.
- Circumstances that come to the Contractor’s knowledge after the Agreement has been concluded give him good reason to fear that the Client will cause damage to third parties.
- The Principal was asked to provide security for the fulfilment of his obligations under the agreement when the agreement was concluded and this security is not provided or is insufficient.
- The Contractor has another legitimate reason for doing so.
- Furthermore, the contracted party will be entitled to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the agreement cannot possibly be required or can no longer be required according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer reasonably be expected.
- If the agreement is dissolved, the claims of the contractor on the client will be immediately due and payable. If the contractor suspends fulfilment of the obligations, he shall retain his claims under the law and the agreement.
- The contractor always retains the right to claim damages.
Article 11 – Liability
- Under no circumstances shall the contracted party be liable for any damage suffered, whether direct or indirect as a result of using the services or products of the contracted party.
- If the contracted party should nevertheless be liable, this liability shall be limited to the provisions of this clause.
- If the contractor is liable for direct damage, such liability will be limited to a maximum of once the total price, at least for that part of the order to which the liability relates.
- Notwithstanding the provisions under 3. of this article, in the event of an order with a duration of more than three months, the liability will be further limited to the amount due over the last three months.
- Direct damage is exclusively understood as:
- the reasonable costs incurred to establish the cause and extent of the damage, insofar as the establishment relates to damage in the sense of these terms and conditions;
- any reasonable costs incurred to have the Contractor’s defective performance conform to the Agreement, unless such costs cannot be attributed to the Contractor;
- reasonable costs incurred to prevent or limit damage, in so far as the client demonstrates that those costs led to a limitation of direct damage as referred to in these general terms and conditions.
- The contractor shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
Article 12 – Indemnifications
- The client indemnifies the contractor against claims by third parties regarding intellectual property rights on materials or data provided by the client, which are used in the execution of the agreement.
- If the client provides information carriers, electronic files or software etc. to the contractor, the latter guarantees that the information carriers, electronic files or software are free of viruses and defects.
Article 13 – Force majeure
- The parties are not obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to fault and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted practice.
- In these general conditions, force majeure will be understood, in addition to its definition in law and case law, to include all external causes, foreseen or unforeseen, over which the contracted party cannot exercise any control, but which prevent the contracted party from being able to fulfil its obligations.
- The Contractor shall also be entitled to invoke force majeure if the circumstance preventing (further) performance occurs after the Contractor should have fulfilled its obligations.
- The parties may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties will be entitled to dissolve the agreement, without any obligation to pay compensation to the other party.
- Insofar as the Contractor has partially fulfilled its obligations under the Agreement or will be able to fulfil them at the time when the situation of force majeure arises, and independent value can be attributed to the part already fulfilled or to the part to be fulfilled respectively, the Contractor is entitled to submit a separate statement of expenses for the part already fulfilled or to be fulfilled respectively. The Principal shall be obliged to pay this invoice as if it were a separate agreement.
Article 14 – Secrecy
- The parties shall keep confidential any information that is logically confidential or has been declared confidential by the other party.
- If a court ruling or a statutory provision requires the contractor to disclose confidential information, the contractor shall not be liable for compensation or indemnification and the other party shall not be entitled to dissolution on the grounds of any loss caused thereby.
Article 15 – Copyright and Intellectual Property
- Without prejudice to the other provisions of these general terms and conditions, the Contractor reserves the rights and powers to which the Contractor is entitled under the Copyright Act.
- All documents provided by the Contractor, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are intended solely for the Client’s use and may not be reproduced, disclosed or brought to the notice of third parties by the Client without the Contractor’s prior consent, unless the nature of the documents provided dictates otherwise.
- The contractor reserves the right to use the knowledge gained by the execution of the work for other purposes, to the extent that no confidential information is brought to the knowledge of third parties.
- The Client agrees that the Client’s logo, designs or products made for the Client by the Contractor or the Client’s experiences will be recognisably published and used for promotional purposes, unless such expressions contain sensitive or confidential information.
- The Client has the right to object to paragraph 4 of this article, after which the Contractor will not post the publications or will remove them where possible.
Article 16 – Disputes
- The parties shall make every effort to resolve a dispute in mutual consultation.
- The court in the place of business of the contractor has exclusive jurisdiction to hear disputes, unless the subdistrict court has jurisdiction. Nevertheless, the contracted party is entitled to submit the dispute to the following court with jurisdiction under the law.
These conditions and each agreement are governed by Dutch law.
The contracted party reserves the right to amend these terms and conditions, provided that the customer has been informed accordingly.
EXTRA TERMS AND CONDITIONS CUBIC MILL HOSTING
Client shall perform its services to the best of its knowledge and ability. Client gives no guarantees for its services and systems for minimum speeds, uninterrupted functioning, reliability or accessibility. Any damage suffered due to the above causes cannot be recovered from the Contractor, including consequential damage, loss of profit, missed savings and damage due to business interruption.
The Contractor is not liable for the content posted by the Client or the manner of using the Contractor’s services, as well as any damage resulting from the Client’s actions.
Damage suffered due to abuse by the client will be recovered from the client.
Termination and suspension
Client may terminate his subscription to services of Cubic Mill Hosting at the end of the contract in writing. The service will then be terminated subject to the running time for the relevant service. Interim termination is not possible and there will be no refund of amounts paid.
The Contractor reserves the right to terminate the service temporarily or permanently with immediate effect. This is necessary to be able to act, for example, in case of suspected illegal activities on the website or in case of non-payment. The payment obligation will then continue until the next termination option, with the term of the agreement observed.
Duration of the agreement
For domain name registrations, the agreement is entered into for one (1) year. The agreement is extended each time by one (1) year. We do this within the framework of protecting the domain name’s ownership.
For all other services (such as forwarding service, e-mail hosting and web hosting), the agreement is entered into for the duration of three (3) months, after which it is tacitly renewed each time.
Both services are subject to a notice period of one (1) month, the notice must be received no later than two (2) days before the new period starts.
Cubic Mill Hosting offers a unique opportunity to enter into a product or service agreement in a very easy way. By signing the Modification Consent, Client grants to Contractor the right to request, modify or terminate services using the modes of communication as indicated on the Modification Consent.
Client is aware that orders given in these modes are immediately final and irrevocable. Any damages suffered due to the accidental transmission of an order or abuse of third parties cannot be recovered from the contractor.
Client has read and agrees to the terms and conditions of our supplier. (Link: https://www.transip.nl/algemene-voorwaarden/ )
ADDITIONAL TERMS AND CONDITIONS CUBIC MILL WEB SOLUTIONS
Revisions and warranty
Where the agreement includes the creation of a design for a user interface, app, website or similar design, client is entitled to 2 (two) revisions of the initial design.
After written approval of the product, the client is entitled to 1 (one) month warranty on operation of the product. Operation is guaranteed only in the state in which the product was delivered (same functions, operation, modules, etc.).
If changes have been made by parties other than the contractor after delivery, the right to warranty lapses.
If the client cancels the agreement prematurely, the client shall be obliged to pay the invoices for work performed up to that time plus EUR 39 cancellation fee excluding VAT. The preliminary results shall then be made available to the client if reasonably possible.
ADDITIONAL TERMS AND CONDITIONS CUBIC MILL DIGITAL
Revisions and guarantee
When the agreement includes the creation of a design, the client is entitled to 2 (two) revisions of the initial design.
If the client cancels the agreement prematurely, the client shall be obliged to pay the invoices for work performed up to that point plus EUR 39 cancellation fee excluding VAT. The preliminary results will then be made available to the client if reasonably possible.
ADDITIONAL CONDITIONS CUBIC MILL PRINT
Revisions and guarantee
When the agreement includes the creation of a design, the client is entitled to 2 (two) revisions of the initial design.
When the client has provided data to be used in a design, the contractor is not liable for any (typing) errors and checking of the data. The right to warranty lapses.
If the Client has opted for design including printing, a guarantee is given on the quality of the printing. The proof copies supplied to the Contractor by the supplier of the printed matter are binding in this.
Slight deviations in, for example, colour and quality may occur. The Client understands this and agrees that the Contractor’s assessment is binding as to whether there is a deviation under warranty.
If the Client cancels the Agreement prematurely, the Client shall be obliged to pay the invoices for work performed up to that time plus EUR 39 cancellation fee excluding VAT. The preliminary results will then be made available to client if reasonably possible.